Richer v. Pinel, 2003 FC 887

Date: 20030716

Docket: T-335-02

Citation: 2003 FC 887

Ottawa, Ontario, this 16^th day of July, 2003

PRESENT:      The Honourable Mr. Justice James Russell

BETWEEN:

                                                                 JEAN RICHER

                                                                                                                                            Applicant

                                                                         - and -

LEO PINEL, INDEPENDENT CHAIRPERSON,

SASKATCHEWAN PENITENTIARY and

ATTORNEY GENERAL OF CANADA

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of the decision rendered by Independent Chairperson, Leo Pinel (the "ICP") carrying out his functions pursuant to the Corrections and Conditional Release Act, S.C. 1992, c.20 (the "CCRA") and the Corrections and Conditional Release Regulations, SOR/92-620 and made on February 6, 2002 (the "Decision").    

[2]                The Applicant is serving a life sentence with no eligibility for parole for 25 years. On January 28, 2002, he refused to provide a urine sample (the "Sample") as requested by Officer Patrick Northey, ("Officer Northey"), who was the Urinalysis Collector at the Saskatchewan Penitentiary. On January 30, 2002, it was determined that a charge was warranted against the Applicant under subsection 40(l) of the CCRA. The Applicant appeared before the ICP on February 6, 2002 and was found guilty. A $45.00 fine was levied.

[3]                Officer Northey was the sole witness called during the hearing before the ICP.

[4]                As a preliminary matter, the Respondents correctly pointed out that the Attorney General of Canada had not been made a party to this application. The Applicant undertook to bring an application to amend the style of cause in accordance with subsection 303(2) of the Federal Court Rules, 1998. The Respondents consented and the hearing proceeded on this basis.

Issues

[5]                1.         What is the standard of review?

2.         Did the ICP err in finding that the Applicant did unlawfully fail or refuse to provide a urinalysis sample when demanded to do so pursuant to subsection 54(b) of the CCRA?

3.         Could the Applicant invoke rights under the Canadian Charter of Rights and Freedoms at any relevant time?

4.          Did the Applicant receive a fair hearing?

5.         Did the ICP err in law by failing to consider informal resolution under section 41 of the CCRA?

6.         Is the Applicant raising issues and legal arguments that were not before the ICP?

Relevant Legislation

[6]                The relevant statutory provisions are subsections 40(l), 41.(1) and sections 54, 56 and 57 of the CCRA:

[7]                Various provisions contained in the Corrections and Conditional Release Regulations, Part 1 Corrections (the "Regulations") are also relevant for the case at bar:

[8]                The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, (the "Charter") provides as follows:

Analysis

The Standard of Review

[9]                The Respondents correctly cite Barnaby v. Canada, [1995] F.C.J. No. 1541 as authority for the proposition that this Court has held that its role in a judicial review application is not that of an appeal court. Curial deference for an administrative tribunal in a corrections disciplinary setting is very high. The decision of Kelen J. in Forrest v. Canada (Attorney General), [2002] F.C.J. No. 713 (T.D.) summarizes the current status of the law relating to standard of review in penitentiary disciplinary proceedings:

16             The nature of the standard of review for a disciplinary court in a penitentiary was set out in Canada (Correctional Services) v. Plante, [1995] F.C.J. No. 1509 (F.C.T.D.) per Pinard J.:

The nature and functions of the disciplinary court in question were well summarized by my colleague Denault J. in Hendrickson v. Kent Institution Disciplinary Court (Independent Chairperson) (1990), 32 F.T.R. 296, at 298 and 299:

The principles governing the penitentiary discipline are to be found in Martineau (No. 1), [1978] 1 S.C.R. 118">[1978] 1 S.C.R. 118 (supra) and Martineau v. Matsqui Institution Disciplinary Board (1979), 30 N.R. 119; 50 C.C.C. (2d) 353 (S.C.C.); Blanchard v. Disciplinary Board of Millhaven Institution (1982), 69 C.C.C. (2d) 171 (F.C.T.D.); Howard v. Stony Mountain Institution Inmate Disciplinary Court (1985), 57 N.R. 280; 19 C.C.C. (3d) 195 (F.C.A.), and may be summarized as follows:

1. A hearing conducted by an independent chairperson of the disciplinary court of an institution is an administrative proceeding and is neither judicial nor quasi-judicial in character.

2. Except to the extent there are statutory provisions or regulations having the force of law to the contrary, there is no requirement to conform to any particular procedure or to abide by the rules of evidence generally applicable to judicial or quasi-judicial tribunals or adversary proceedings.

3. There is an overall duty to act fairly by ensuring that the inquiry is carried out in a fair manner and with due regard to natural justice. The duty to act fairly in a disciplinary court hearing requires that the person be aware of what the allegations are, the evidence and the nature of the evidence against him and be afforded a reasonable opportunity to respond to the evidence and to give his version of the matter.

4. The hearing is not to be conducted as an adversary proceeding but as an inquisitorial one and there is no duty on the person responsible for conducting the hearing to explore every conceivable defence, although there is a duty to conduct a full and fair inquiry or, in other words, examine both sides of the question.

5. It is not up to this court to review the evidence as a court might do in a case of a judicial tribunal or a review of a decision of a quasi-judicial tribunal, but merely to consider whether there has in fact been a breach of the general duty to act fairly.

6. The judicial discretion in relation to disciplinary matters must be exercised sparingly and a remedy ought to be granted "only in cases of serious injustice" (Martineau No. 2, p. 360).

17             In situations such as the cases at bar, a standard of review of patent unreasonableness was determined to be appropriate by Dubé J. in Boudreau v. Canada (Attorney General), [2000] F.C.J. No. 2016 (F.C.T.D.):

The standard of review in the context of decisions made by the Correctional Service of Canada officials is, on the balance of probabilities, whether the decision was patently unreasonable [See: Fitzgerald v. Tron, [1994] B.C.J. No. 1534, Vancouver Registry No. CC931084, July 7, 1994 (B.C.S.C.); McLarty v. Canada (1997), 133 F.T.R. 11 (T.D.).] [emphasis added]

18             It is established that this Court accords curial respect for disciplinary decisions in a correctional environment with the understanding that the Disciplinary Court in a penitentiary is set up as an internal investigative or inquisitorial process. Gibson J. in Beaudoin v. William Head Institute [1997] F.C.J. No. 1663 (F.C.T.D.) at paragraph 7 referred with approval to a decision of Joyal J. in Barnaby v. Canada, [1995] F.C.J. No. 1541 (F.C.T.D.):

[...] Curial respect for an administrative Tribunal's disciplinary decisions in a correctional environment is as high as for any other Tribunal.   

19             Accordingly, this Court will not intervene on a question of fact, or a question of mixed fact and law unless the Disciplinary Court:

(i) has made the finding of fact in a patently unreasonable manner; or,

(ii) has made the finding of mixed fact and law in an unreasonable manner, i.e. without a reasonable basis.

As well, the role of the Court on judicial review is to determine if the Disciplinary Court had evidence and a reasonable basis on which to make its decision, and to ensure that the Disciplinary Court did not err in law or fail to observe a principle of natural justice or procedural fairness in making its decision.

Was there a Reviewable Error in this Case?

[10]            Relying upon the decision of Pinard J. in Savard v. Canada, [1997] F.C.J. No. 105 (T.D.), which in turn refers to Picard v. Drummondville Institution , [1995] F.C.J. No. 1628 (T.D.), the Applicant argues that he "was not given a sufficient summary of evidence as required by the Regulations at section 25 in order to make a full answer and defence, and such was a flagrant breach of section 25 of the Regulations ...." Both Picard, supra, and Savard, supra, dealt with subsection 54(a) of the CCRA, and individual disciplinary offences and the need to obtain urine samples as evidence of such offences. By comparison, subsection 54(b) describes a random testing program implemented to address the institutional problem of inmate drug use. As such, it is difficult to see what relevance section 25 of the Regulations has in this case.

[11]            In his written materials and at the judicial review hearing of this matter, the Applicant raised various issues to show that a reviewable error had occurred.

Failure to advise on right to legal counsel

[12]            The Applicant argues that he was "detained" when he was requested to provide the random urinalysis sample and so became entitled to contact legal counsel. Because he was not advised that he could do so, his Charter rights were infringed. The failure of the ICP to recognize this fundamental disregard of the Applicant's rights in his decision was a reviewable error.

[13]            The Respondents rely upon Fieldhouse v. Canada (1995), 40 C.R. (4th) 263 (B.C.C.A.) and Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872 to show that subsection 54(b) of the CCRA constitutes neither an unreasonable diminution of an inmate's liberty nor an unreasonable invasion of privacy or the integrity of an inmate's person. As the Supreme Court of Canada said in Weatherall, supra, at page 877:

Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices. This conclusion is unaffected by the fact that the practices at times may be conducted by female guards. There being no reasonable expectation of privacy, s. 8 of the Charter is not called into play; nor is s. 7 implicated.

[14]            As regards an inmate's right to counsel under section 10 of the Charter, this has been dealt with in Bryan Rolston Latham (Applicant) v.Solicitor General of Canada and his agents, National Parole Board and Correctional Service of Canada, part of which used to be called Parole Service of Canada (Respondents), [1984] 2 F.C. 734 (T.D.) and cases that have followed it. In Latham, supra, where an inmate had his parole revoked and suffered a significant loss of freedom as a result, Strayer J. ruled that there was no right to counsel:

I have concluded that this guarantee does not apply to the present situation. While counsel cited no authority on this point, it appears to me that this paragraph is designed to cover the situation of initial arrest or detention. The phrase "on arrest or detention" would suggest as much. Otherwise, in the context of prison there would be a continuing duty, day by day, for prison authorities to advise inmates of their right to counsel.

[15]            This approach has been followed in Everingham v. Ontario, [1993] O.J. No. 55, and by this Court in Olson v. Canada 39 F.T.R. 77 and Henry v. Canada 29 C.R.R. 149 where, at page 155, Strayer J. again addressed the scope of section 10(b) of the Charter:

Section 10(b) with respect to the right to "retain and instruct counsel" is irrelevant as it applies only "in arrest and detention". This clearly is designed to protect a person when first arrested or detained and does not apply to a person imprisoned on a continuing basis subsequent to conviction, which is the situation in the present case where the plaintiff complains of improper interference with his correspondence with barristers and solicitors in respect of various proceedings he wishes to take to reopen his convictions (unsuccessfully appealed already) and to obtain remedies concerning the conditions of his confinement.

[16]            In the case at bar, a request that the Applicant submit to random urinalysis in accordance with subsection 54(b) of the CCRA did not give rise to a separate "detention" that would invoke the right to legal counsel in accordance with section 10 of the Charter. Such a process is merely part of the proper administration of the institution to ensure the well-recognized objectives of security and safety. No reviewable error was made in this respect.

Right to fair hearing denied

[17]            The Applicant also alleges that the ICP committed a reviewable error when he indicated to the Applicant that he would not make a decision on the Applicant's Charter arguments because the Charter did not apply in this case and because he was not a court of competent jurisdiction, he could not rule on the Charter. Once again, it would appear that the Applicant is referring to the right to legal counsel under section 10 of the Charter.

[18]            The transcript of the hearing shows that the ICP allowed the Applicant to make full argument on section 10 and on the general issue of the failure to provide a random urinalysis sample. The procedure for penitentiary discipline as set out in Hendrickson v. Kent Institution Disciplinary Court (Independent Chairperson), [1990] F.C.J. No. 19 (T.D.) was fully complied with in this regard. The fact that the ICP did not agree with the Applicant on his right to counsel and the applicability of the Charter does not mean that the Applicant did not receive a fair and full hearing on the points he wished to raise. There was no reviewable error in this regard.

Failure to inform on the purpose of the sample

[19]            The Applicant further argues that, before submitting to random urinalysis, he had a right to be informed of the purpose of the procedure and what the urine specimen would be used for. This did not happen in this case and the ICP's failure to take this into account gives rise to a reviewable error. The transcript of the hearing before the ICP reveals that Officer Northey, the person who requested that the Applicant submit to the random urinalysis, told him that "it's a random urinalysis sample." The Applicant says this was not sufficient to let him know what the sample would be used for.

[20]            The Respondents point out that subsection 54(b) does not require an explanation of why the urine is being collected; the purpose is set out in the legislation and is a matter of public record. The process is just one of the many searches that inmates are subjected to as part of legitimate prison administration. In any event, the Applicant signed an acknowledgement which read as follows:

I THE UNDERSIGNED do hereby declare that I have been informed of the basis upon which this sample is required and understand the consequences of non-compliance with this requirement. I understand that an inmate who fails or refuses to provide a urine sample commits a disciplinary offence under section 40(l) or 40(a) of the Corrections and Conditional Release Act.

[21]            Subsection 54(b) is clear in the powers and obligations of a staff member who asks an inmate to submit to urinalysis. A random sampling program is part of the general administration of the institution where the Applicant finds himself. I find there is no reviewable error in this regard.

Failure to consider informal resolution

[22]            Section 41 of the CCRA stipulates that, where a staff member believes on reasonable grounds that an inmate has committed or is committing a disciplinary offence, the staff member shall take all reasonable steps to resolve the matter informally, where possible.

[23]            The Applicant argues that "no informal resolution was attempted by Mr. Northey prior to the charge being issued, the applicant was told that the failure to provide said sample would constitute a disciplinary offence, and a disciplinary charge would ensue from the refusal to provide the sample. At no time was a demand to provide a sample ever made as the wording of the charge itself provides."

[24]            The Respondents argue as follows:

It is evident from the transcript and the Affidavit of Patrick Northey that the Applicant refused to provide random urinalysis sample. He was presented with the opportunity to do so and was advised of the consequences for failing to do so. He still refused to provide the sample. It is in this exact situation that the institutional head, pursuant to subsection 41(2) of the Corrections and Conditional Release Act may, depending on the seriousness of the alleged conduct, issue a disciplinary offence. In the cases referenced in this Memorandum, the Federal Court has, on numerous occasions, taken judicial notice of the security and safety problems that illegal drugs in the institution can create and the legitimate reasons for having a random urinalysis program in the federal penitentiary system.

[25]            However, Campbell J. noted in Schimmens v. Canada (Attorney General), [1998] F.C.J. No. 1486 (T.D.) that:

3       I agree with the Applicant's argument that s. 41(1) establishes a condition precedent which must be met before the institutional court has jurisdiction to proceed with the hearing of a charge. Thus, I find s. 41(1) creates an obligation on the institutional court member before hearing a charge to investigate to be satisfied that "all reasonable steps to resolve the matter informally, where possible" have been taken.

4       Respecting the obligation created under s. 41(1), the institutional court member hearing the charge in this case said as follows:

I am taking into account the, the, the resolution procedure which was attempted to be followed, which I think is pretty much a administrative thing, doesn't go to the heart of the charge, but I think that some efforts were made to resolve this informally but didn't work. But as I say that does not effect the validity of the charge but I think it is one of the things I can consider as to whether I treat this as a major or minor matter.

5      With respect, I find that the member misapprehended the meaning of s. 41(1), and as a result, the obligation created by its provisions was not discharged.

[26]            The Respondents have referred me to Verrault v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1441, in support of their argument that subsection 41(2) was complied with in this case.

[27]            In Verrault, supra, a bag of urine was found hidden in the inmate's trousers and he was charged with breaching the CCRA and was found guilty of being in possession of a prohibited item and fined $40.00. The CCRA requires that a staff member take steps to resolve a matter informally if it is believed that an inmate is committing a disciplinary offence. On this issue, Beaudry J. ruled as follows:

23 I asked counsel for the applicant what would have been the reasonable steps that the staff member could have taken to resolve the matter informally. The answers that I received were to the effect that the staff member could have made the inmate aware of the situation or asked him questions about his behaviour. I cannot agree with this logic.

24 I am satisfied that the circumstances in this case were such that the staff member seizing the items was unable to take reasonable steps to resolve the matter informally. In fact, as the Chairperson of the Disciplinary Court noted, the bag in question and the urine were part of an attempt to circumvent the urinalysis system. The staff member had no obligation to make the inmate aware of the situation or to ask him questions about his behaviour, because in my opinion the facts and the inmate's gestures had only one purpose, to thwart the urinalysis.

[28]            Similarly, in the case at bar, I fail to see what reasonable steps at informal resolution Officer Northey could have taken other than to advise the Applicant of the consequences of his not providing a urine sample in accordance with subsection 54(b), which he did. Subsection 41(1) requires a staff member to "take all reasonable steps to resolve the matter informally, where possible." Officer Northey complied with this section in this case. There is no reviewable error in this regard.

Issues and Legal Arguments that were not Before the Independent Chairperson

[29]            The Respondents note correctly that the Applicant raises the following issues and legal arguments that were not before the ICP:

1.         Whether the definition of "laboratory" as found in section 60 of the Corrections and Conditional Release Regulations requires that an authorised laboratory must be named within a Commissioner's Directive;

2.         Whether the definition of an "approved procedure" requires that the procedure for analysis of a urinalysis sample must be set out in a Commissioner's Directive;

3.         Whether paragraph 16 of Commissioner's Directive 566-10 provides another avenue of informal resolution because the Applicant's name could have been placed at the bottom of the random selection list; and

4.         Whether the Applicant was denied a fair hearing because Mr. Wayne Despins "served as a disciplinary board member as a member of the Correctional Service."

[30]            The Applicant concedes that these matters were not before the ICP. Consequently, they are not appropriate issues to be raised as part of this judicial review.

ORDER

THE COURT HEREBY ORDERED THAT: the application for judicial review is dismissed.

    "James Russell"                       

        J.F.C.C.

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                           T-335-02

STYLE OF CAUSE:                             Jean Richer v. Leo Pinel, Independent Chairperson,       Saskatchewan Penitentiary and Attorney General of Canada

DATE OF HEARING:                        May 22, 2003

PLACE OF HEARING:                      Saskatoon, Saskatchewan

REASONS FOR ORDER BY:             Justice James Russell

DATED:                                                July 16, 2003

APPEARANCES BY:                       

Mr. Jean Richer

                                                                                                             For the Applicant

(on his own behalf)

                                                            Mr. Bruce Gibson

For the Respondent

SOLICITORS OF RECORD:          

Mr. Jean Richer

Box 160,

Prince Albert, SK    S6V 5R6

                                                                                                            For the Applicant

(on his own behalf)

                                                            Mr. Bruce Gibson

Department of Justice

Saskatchewan Regional Office

123 - 2^nd Avenue South, 10^th floor,

Saskatoon, SK    S7K 7E6

For the Respondents

FEDERAL COURT OF CANADA

          Date: 20030716

                  Docket: T-335-02

BETWEEN:

JEAN RICHER

Applicant

- and -

LEO PINEL, INDEPENDENT CHAIRPERSON,

SASKATCHEWAN PENITENTIARY and

ATTORNEY GENERAL OF CANADA

                                       Respondent

REASONS FOR ORDER